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TMI Blog2002 (8) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... was arrived at. Although the petitioner s letter dated 19-5-2002 to the respondent contained a request for a confirmation of dues of Rs. 41,20,049, since further supplies had been made in that very month for a value of Rs. 3,07,344, the respondent confirmed on that very letter that as on 31st May, 2000 a total sum of Rs. 44,27,393 was outstanding against the petitioner. Copies of the purchase orders placed by the respondent on the petitioner together with corresponding invoices have been filed along with the petition. On the failure of the respondent to meet its financial commitments, a statutory notice dated 28th May, 2001 was served on the respondent in which a demand was recorded for Rs. 45,78,228 along with interest at the rate of 21 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it has pleaded as follows : "On or about 19-5-2002, the petitioner requested the respondent to sign the balance confirmation which was required for audit purpose. The respondent-Company signed the same, however, had made it clear to the petitioner that the Debit Note issued to the petitioner should be taken into account and in case of any rejection of cassettes in respect of magnetic tapes supplied by the petitioner, appropriate adjustment should be given. Hereto annexed and marked Annexure R-5 is the copy of the letter dated 19-5-2001 issued by the respondent and accepted by Mr. Y.K. Bhardwaj, AGM, Marketing on behalf of the petitioner-Company." 3. Reliance has been placed by respondent s learned counsel on section 12 of the Sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified. ( v )The machinery of winding-up should not be allowed to be utilised merely as a means of realising its debts. [For the above propositions see Pradeshiya Industrial Investment Corporation of Uttar Pradesh v. North India Petro-Chemical Ltd. AIR 1994 SCW 2495 in which the observation in Amalgamated Commercial Traders (P.) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp. Cas. 456 (SC) and Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. AIR 1971 SC 2600 have been paraphrased]. ( vi )If the stance of the adversaries hangs in balance it is always open to the Company Court to order the Respondent Company to deposit the disputed amount. This amount may be retained by the Court and be held to the credit of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court has clarified in Gopalakrishna Pillai v. K.M. Mani AIR 1984 SC 216, that a breach of warranty does not entitle a buyer to reject the goods and his only remedy would be to set up against the seller the breach of warranty in diminution or extinction of the price, or to sue the seller for damages for breach of warranty. It has also been contended that because of the rejection of the goods by PIL the respondent has incurred heavy damages and that these contracts have now been placed on other parties. Since a considerably long period of almost one year has elapsed between the supply of the goods and their rejection it may be impermissible to allow the respondent a diminution of price in these proceedings since delivery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a civil suit etc. within four weeks from today. If this is done, the balance amount shall lie to the credit of the suit. The petitioner may seek appropriate orders for the release of the amount or part thereof, as the case may be, in those proceedings. The respondent would be entitled to set-up any defence available to it in those proceedings. 8. On the failure of the respondent to make compliance the citation shall be published in the Indian Express (English), Nav Bharat (Hindi) and Delhi Gazette, returnable for 25-9-2002. It is made clear that in such an event a provisional Liquidator is likely to be appointed on the next date of hearing keeping in view the fact that the respondent has itself mentioned in its letters that it is under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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